The UK’s largest social care charities have said they will continue to pay “sleep-in shift” care workers the full minimum wage, despite a court ruling in July saying it was not mandatory.

A Court of Appeal hearing involving Mencap ruled in July that workers on sleep-in shifts were not always entitled to the full minimum wage.

The Department for Business, Energy and Industrial Strategy (BEIS) updated its guidance this month to reflect the Court of Appeal ruling to say that employers are not necessarily required to pay sleep-in shift workers the full minimum wage.

BEIS had previously published guidance in 2016 saying sleep-in shift workers were due the minimum wage for time spent at work but asleep, following employment tribunals which had ruled against Mencap.

As a result of the employment tribunal hearings, many social care charities started paying “top-up fees” to sleep-in shift workers to bring their pay into line with the minimum wage.

But since the Court of Appeal ruling, Alternative Futures Group, a charity, and an unnamed large council have both announced they are dropping pay for sleep-in shift workers back to below the minimum wage.

However, the UK’s ten largest charities that employ sleep-in shift workers, have all said they have no plans to follow suit and cut care workers’ pay.

Jan Tregelles, chief executive of Mencap, said earlier this month that her charity had committed to paying the minimum wage for sleep-ins despite the ruling.

Now, Leonard Cheshire, RNIB, Turning Point, Orders of St John Care Trust, Community Integrated Care, National Autistic Society, Sense, United Response and Hft have all told Civil Society News they have no plans to reduce funding.

‘Unable to make long-term decisions’

However, some charities said their ability to continue paying top-up fees would depend on the funding they receive from commissioners, who are usually local authorities.

Jacqui Roynon, executive director of people and communications at Hft said: “While we firmly believe staff deserved to be paid fairly for the work that they do, our ability to pay is dependent on the money we receive from the local authority.

“Hft has contracts with over 100 local authorities across England, many of whom are still working out what the updated guidance from BEIS means for them and how it will affect the funding they give to providers.

“As a result, while we have already committed to paying top ups until at least the end of December to help our staff manage the increase costs associated with Christmas, we have not been able to make any firm decisions around the long term payment arrangements of sleep-in shifts.”

Meanwhile, a spokesperson for Turning Point said the charity was waiting to see whether workers union Unison is successful in its application to appeal the latest Mencap ruling in the Supreme Court.

They said: “As with other organisations we follow with interest the potential appeal of the recent judgment and therefore have not changed our current approach.”

Councils still funding minimum wage

Some 20 county councils in England have also told Civil Society News they have not made plans to cut funding for sleep-in shift workers since the Court of Appeal ruling.

An Essex County Council spokesperson said: “Many providers in Essex have told us that they are not making any changes at present either.”

However, some councils said they were also waiting to see whether Unison’s appeal would be heard.

A spokesperson for Warwickshire County Council said: “Legal advice suggests that there could be further change to the law depending on the progress of further appeals, so it is not possible to state that this matter is concluded.”

A spokesperson for Staffordshire County Council said: “Whilst we are fully aware of the Mencap Court of Appeal ruling, we are also aware that this is currently being challenged by the unions.

“On this basis, Staffordshire haven’t currently made any changes to its funding of sleep in provisions but continue to review the situation.”

Somerset County Council also said it was “awaiting a decision about the case being taken forward to the Supreme Court”.

Buckinghamshire, Devon, Lancashire, Lincolnshire, North Yorkshire, Nottinghamshire and Surrey are all yet to respond.